Bryn Mawr Classical Review 2000.05.02
Edwin Carawan, Rhetoric and the Law of Draco. Oxford: Clarendon, 1998. Pp. xx, 408. ISBN 0-19-815086-5. $90.00.
Reviewed by Robert W. Wallace, Northwestern University (email@example.com)
Word count: 5036 words
The fruit of many years' work, C.'s volume offers detailed analyses of many ofthe problems presented by Athenian homicide adjudication and the early homicide speeches in support of a major thesis. In Part I, C. concludes that in homicide cases down through the fifth century Athenian courts cared more about formalistic instruments of proof such as oaths, witnesses, and legal texts, than about uncovering the facts of a case. With limited ability to investigate crimes, courts sought primarily to gauge the litigants' sincerity and credibility. "In dikai phonou the trial focuses upon the oaths of the principals, testimony, and challenges, as tests of conviction: the objective question of what happened is not directly at issue; the dispute centres upon the subjective question of the litigant's conviction of his claim of right -- what he earnestly believes and has some way of knowing" (318, see also 376). In early Athens, the function of the basileis was to propose a satisfactory formal way of resolving disputes, by oaths or other tests. Drakon's lawcode retained this orientation. Drakon's "one profound innovation" (2) was instituting "a grand jury" of the ephetai to resolve cases where formal means failed to bring agreement between the disputants. So, far from distinguishing between premeditated, unintentional and justifiable homicide, Drakon allowed for consideration of the killer's state of mind only in cases of pardon where no kinsmen of the victim survived. Solon more systematically provided for consideration of intention, by establishing the Areopagos court to evaluate complex questions of "malice aforethought." The ephetai continued to adjudicate cases in the other homicide courts with less difficult questions to decide.
In Part II of his study, C. uses these conclusions to explain certain apparently curious features of the early homicide speeches, especially Antiphon 1, 6, and Lysias 1. These features include a focus on oaths, witnesses and challenges to slave torture, and a corresponding weakness in argumentation about the facts of the cases at issue. Solmsen had earlier diagnosed these features as pre-logical (see esp. 271-73). C. explains them as conditioned by the traditional nature of dikai phonou. By contrast, Antiphon 5, a homicide case brought through apagoge rather than a dike phonou, reasons more on facts and circumstances. A similar argument applies to Lysias 13. During the later fifth and the fourth centuries the Athenians' approach to homicide shifted, as courts came to reason more from probability and the patterns of human experience and in the interests of the community. These trends are visible in Lysias 12, which C. views as a transitional text, and also in Antiphon's Tetralogies, which, Chapter 5 argues, were probably written a generation after Antiphon. Henceforward the judges "must decide on their own convictions whether the defendant is to blame for grievous injury to the polis."
Readers can only admire the extraordinary effort that went into this long, painstakingly composed volume, and empathize given the complexities of the material C. grapples with. In Part I, the fragmentary and contradictory data for early homicide adjudication must constitute the most treacherous material for scholarly reconstruction. Various interpretations of these data are possible, including C.'s. His ideas on early homicide adjudication are well worth considering. Ch. 4 contains an intelligent, systematic discussion of the procedures used in Athenian homicide trials during the Classical period, reconstructions that will be helpful for all students of Athenian law. In Part II, C.'s exhaustive but fascinating analyses of the early homicide speeches (Antiphon 1, 5, 6, Tetralogies, Lysias 1, 12, 13) must be required reading for anyone working on these texts. Overall, C.'s major thesis is important and possible. In the end, I also think it will require modification and is not proven. The evidence does not indicate as clearly as C. would like a largely formalistic orientation to early Athenian homicide adjudication. C. amplifies this quality through certain possible but nonetheless debatable interpretations of fundamental historical issues such as the origins of Athens' homicide courts and the role of intentionality in legal contexts. Some late fifth-century homicide speeches do show a marked concern with formalistic devices such as oaths and challenges to witnesses. However, these speeches also debate the facts of the case, and other homicide speeches are not primarily formalistic in orientation.
I shall deal first with Part I, the early material, and then consider the speeches.
To establish C.'s thesis regarding early Athenian homicide legislation, it must first be shown that such legislation was preoccupied with formal tests and not more deliberative questions such as motivation. C.'s prime evidence for this orientation is his interpretation of Drakon's homicide law IG 13 104. "And if without pronoia [one man kills another], let him be exiled; and dikazein tous basileas. Guilty of homicide [is either the perpetrator] or the planner; and the ephetai shall diagnonai." According to C., dikazein tous basileas means that the kings shall propose a formal means of resolving a case, for example by oaths or witnesses. Only if the litigants fail to agree to a formal means, do the ephetai then adjudicate their dispute. As G. Thuer has shown, dikazein can mean to propose a formal means of resolving a dispute, in Homer for example by an oath or a payment acceptable to both parties.1 However, in the absence of a tradition of technical legal language, it is reasonable to ask whether this must always be the meaning of dikazein. That is, must an inherently vague verb -- as it were, "to justice-ize" -- always denote the same judicial procedure in different Greek poleis and at different times? In the Gortynian code, dikazein is often supplemented by a following clause, for example according to the testimony of witnesses, or by directing someone to take an oath. This need not mean that dikazein itself must always refer to such formal proofs but only that formal proofs could be used as a means of reaching a judicial settlement. In the trial scene in Iliad 18 it would seem strange that, with spectators cheering on both sides, the elder who merely proposed an acceptable means of resolving the dispute, "a formula rather than a verdict" (272), should be given two talents, rather than the elder, the histor or "sage" who proposed the most satisfactory resolution, the peirar (according to R. Westbrook a fair limit to the compensation demanded2) and "the straightest dike." C. (62) understands histor in the sense of "witness" (to their oath): the disputants seek "an end" (peirar) before a witness to what they swear. However, following Wolff, C. then (and rightly) identifies this "witness" with the elder who speaks the straightest judgment and who gets the two talents (64). It thus is clear that "witness" and "oath" are C.'s additions to this scene, in conformity with his thesis. In a wider sense it is hard to imagine that the crowd standing round was not trying to influence the outcome of the dispute by shouting in favor not of some test but of an actual proposal to resolve the quarrel. Community pressure and the competing wisdom of elders induced opponents to reach a compromise. In Homer's scene each side presumably stated his case to the elders, and each elder appears to have "pronounced a judgment." The elder who pronounced the "straightest" judgment, the judgment most acceptable to the crowd (if not automatically to the litigants), received the talents. This reconstruction has I believe at least as much justification as C.'s. If it is right, then already in our earliest evidence we have moved beyond the simple designation of formal tests in homicide adjudication.
What is the meaning of dikazein in Drakon's law? There are three obstacles to C.'s view that it means "to find a formal means of resolution." First, the text would thus contain a significant ellipse: "And if without pronoia [one man kills another], let him be exiled; and the kings shall dikazein. Guilty of homicide [is either the perpetrator] or the planner; and the ephetai shall diagnonai" -- BUT ONLY when the kings have not successfully dikazein'ed. The law itself might naturally (to use one of C.'s favorite arguments) suggest that the ephetai adjudicated all cases of unpremeditated homicide not merely those where no formal solution had been reached. In later passages of Drakon's law (sometimes not quoted by C.), the ephetai figure prominently. For example, in lines 26-29 if someone kills a person observing the terms of his exile, the killer "shall be treated on the same basis as one who kills an Athenian. The ephetai are to diagignoskein." In none of these later provisions are the basileis mentioned. Why not, if with C. they had a primary role in homicide adjudication? All these later mentions of the ephetai are inconsistent with the minor role they play in C.'s reconstruction. M. Gagarin has proposed that dikazein in Drakon's law means "to pronounce the sentence" which the ephetai had decided on.3 This seems more or less right and would be consistent with the diminished power of the basileis by 621 and, simultaneously, the retention of some traditional language and formalities of adjudication. Instead of elders pronouncing various judgments which the crowd then "voted" on, after Drakon the ephetai reached a judgment which the kings pronounced.
A second obstacle to C.'s interpretation also occurs. For C. the ephetai had two functions: to adjudicate either when no formal means of resolving a dispute was agreed upon, or when a question of reconciliation arose sometime after the trial and no near kinsmen were alive. In such cases, the law states, "if the killing was unintentional [akon] and the fifty-one ephetai decide that the killing was unintentional, let ten phratores grant pardon if they are willing." For this second function C. proposes a two-step procedure of adjudication and reconciliation: a killer is condemned and sent into exile; subsequently, after all near kinsmen of the victim have perished and the question of reconciliation arises, the ephetai are specially convened to adjudicate whether his earlier killing had been intentional. But surely it would be difficult to adjudicate such an issue some time after -- quite possibly long after -- a killer's original trial. It seems more likely that Drakon's law refers to the original sentence of the ephetai that a killing was unintentional. This would imply that the ephetai normally adjudicated all cases at least of unintentional homicide.
Finally, third, C. admits (89, cf. 112) that in what he (and I) regard as Solon's law establishing the jurisdiction of the Areopagos, dikazein refers to "an ordinary jury verdict." Solon's provision comes only 27 years after Drakon's, and offers no indication that its use of dikazein was something new or needed clarification. Likewise, I have argued, before Solon too dikazein could have various meanings. Solon's usage is one further indication that Homer and the Gortynian code cannot determine the meaning of this term in Drakon's law.
The next major issue C. addresses is the question of how far intentionality was a factor in early adjudication. Drakon's law begins "and if" (or "even if") "without pronoia [one man kill another], let him be exiled." C. spends many pages arguing that motivation played very little role in Drakon's law, that questions of intentionality, the state of mind of the killer, figure only in the comparatively insignificant provision for pardon if no kinsmen of the victim survive and "if the killing was unintentional and the fifty-one ephetai decide that the killing was unintentional." In other circumstances, and in the trial itself, intentionality was not a factor: in Drakon's law there was "no statutory distinction [C.'s italics] between intentional and unintentional homicides" (104). Even when the ephetai were called upon to adjudicate cases, they "probably arrived at their decision following a mechanistic model of causation, such as we find in other primitive jury trials" (72). For C., Drakon's legislation was not especially innovative but reinforced the interests of powerful families (2): "Draco inscribed into law the customary arrangement of self-help and private settlement that had evolved in the early polis. Draco's aim was not to create special protections for unintentional killers; on the contrary, the old rules of automatic exile and self-help against trespass apply to all -- even if a man kill without malice" (383, cf. also 43).
C. well shows (45-48) that intentionality in killing was an issue already in Homer. C. also admits that "it seems certain" (35) that an initial clause or heading regarding intentional homicide (murder) once preceded the extant text of Drakon's law and has been lost. Yet on the same page C. writes that "the law as we have it indicates no separate penalty for murder as opposed to unintentional killing, and if the difference was of no consequence in punishment, the very concept of intentionality may have been of little relevance to the justices' verdict." If the law "as we have it" is incomplete, however, we do not know whether it specified any different penalty for homicide. Drakon's laws were famously bloody: can he have specified simply exile rather than immediate killing for premeditated homicide? (C. suggests that "exile was not itself a penalty but part of the mechanism of private settlement" , though surely it was both.) How credible is it that in one context Drakon did posit that intentionality in homicide was a factor worth taking into account- that he had made this conceptual breakthrough -- but introduced it only in a comparatively minor situation? Why even mention "without pronoia," if pronoia was not already an important conceptual category? If Drakon was so minor a figure especially in homicide legislation, why was this the one kind of law that Solon kept -- and Solon was no defender of powerful aristocratic families -- and why did Drakon continue to be so important a figure in the history of Athenian democracy? Therefore, we may see in Drakon's legislation a central concern with the questions of premeditation and intentionality already visible in Homer. And if already Drakon was concerned with intentionality, C.'s discussion (ch. 3) of the origin of the five courts, for premeditated homicide, unintentional homicide, and so forth, will have to be modified. For one example among many, C. argues that the Delphinion court's jurisdiction, justifiable homicide for instance in war or sport, must "logically" (123) have been developed by Solon and as a consequence of written law. It is unclear why, since such killings in war or sport obviously preceded Solon and would have to be resolved. (I add, however, that although the issue of Drakon vs. Solon needs further working out, ch. 3 contains many useful observations on Athens' five homicide courts, a topic C. has clearly thought much about.)
In short, I am not convinced that C. has made his case that homicide adjudication under Drakon was largely formalistic and mechanistic and not concerned with important questions such as intentionality or the facts of the case. It does seem likely that oaths, witnesses, and other formalistic devices must sometimes have been important aspects of early Athenian homicide adjudication, even if we have no direct evidence for this (but only the evidence of the later speeches). We also do not know what (if anything) the ephetai talked about -- they certainly could have talked about oaths and witnesses. Even a priori, however, it would seem strange if at early homicide adjudications nobody ever discussed the merits of individual cases but simply the means by which such cases might be resolved. After all, no procedural laws forbade such discussions. Why should substantive issues not be raised, as they are in the fifth-century homicide speeches? It would also seem strange if Solon was responsible for most of Classical Athens' homicide legislation when the Athenians themselves were convinced that Drakon's homicide provisions were the one thing Solon retained.
In a general sense, progress in reconstructing early Athenian homicide adjudication must start from the basis of what little seems reasonably likely. As one final example of this difficulty, right from the start of his volume C. rejects the well established Athenian tradition that long before Solon the Areopagos was an ancient site for homicide trials. Pace C., however, there is no "direct testimony of ancient authors that Solon was indeed the founder of the Areopagos court of homicide" (110). These sources say that Solon founded the Areopagos Council: the court existed earlier. The one category of evidence C. discusses is the myths of early homicide trials on the Areopagos (10-12), evidence which he discounts because except in the case of Orestes, the jurors in these Areopagos myths are gods. True, but did Athens' mythmakers sing of gods adjudicating precisely homicide cases on the Areopagos just by coincidence? Not mentioned are other factors, in particular the shrine of the Semnai, underworld deities of the dead, located just where the ancient court met. The shrine, the legends, and the established Athenian tradition that the Areopagos was Athens' oldest homicide court mean that any hypothesis denying this may have a difficult time-winning consensus.
I now turn to C.'s treatment of fifth-century homicide procedures and the homicide speeches. For C., fifth-century litigants and judges in homicide cases (but not other cases) were also largely concerned with formal issues rather than the merits of the homicide cases under adjudication. C. first considers Antiphon 1, a case of fatal poisoning by a stepmother. Oaths and challenges to torture are indeed fundamental components of this speech, in ss. 5-11 and ss. 28-30 as C. well brings out. It is an astute observation that the plaintiff is concerned whether the defendant's oath is consistent with his actual convictions, rather than with the facts of the case (243). Furthermore, all scholars have seen that the argumentation in this speech is weak, omitting a number of critical points. (Here I must note, however, that this may have been only one of two speeches by the plaintiff, and also that sunegoroi, co-speakers -- a typical feature of Athenian trials as Lene Rubinstein demonstrates4 -- may have covered points omitted by the plaintiff himself.) But C. goes on to claim that "nothing in this speech attempts to establish what precisely the defendant did.... Instead the judges are called upon to weigh the ponderous instruments of oath and challenge to torture. This emphasis upon the formal representations, to the virtual disregard of objective facts, was partly a legacy of archaic justice.... The whole of the speech focuses upon these formal means of proof" (243). These statements, and C.'s summation of the contents of the speech (243-45), silently pass over Antiphon's vivid narration of the facts of the case in ss. 13-20, a narrative designed to show the judges "the truth of what happened" (s. 13), the facts of the case, for the purpose of having the judges convict the defendant (s. 20). Pace C. this passage does "attempt to show what precisely the defendant did," it does not "disregard" the facts, the "whole of the speech" does not focus on oaths and torture. Furthermore, this section is followed by a series of arguments about the greater justice of the plaintiff's claim (ss. 21-27). Such remarks are entirely characteristic of contemporary Athenian speeches in cases other than homicide.
Antiphon 6 was delivered in a dike phonou before the Palladion court.A choreutes is accused of inadvertently poisoning a young chorus member. C., Solmsen and others have seen that an important theme in 6 is a "contest of oaths" (280, see Ant. 6.16), and that, once again, what we would consider critical points are not mentioned. These scholars are right: the defendant's attempt to discredit his opponents truly is a major component of this speech. On the other hand, the defendant also stresses that the facts of the case were important: "I consider that my first duty is to reply to the charge before the court by giving you a complete account of the facts" (s. 8). He emphasizes the harm his opponents are doing to the community (ss. 9-10), he narrates a series of facts (ss. 10-14), he discusses further facts (ss. 16-19), and he summons witnesses (s. 15) who testify about what happened, peri tou pragmatos (s. 16), and apparently at considerable length if they covered all the different points that the defendant says they will cover (s. 15). All this is inconsistent with C.'s statement that the defendant "calls upon his witnesses not to establish specific facts of what actually happened but to support the substance of his plea, that he did nothing negligent or liable" (254). The speech does contain a lengthy attack on the plaintiffs. But since the facts of the case were obscure, the speaker might naturally choose to attack his opponents. C. objects (270) that the speaker "evades what would appear to a modern reader to be a crucial question of fact," that is, what he said that led his surrogates inadvertently to poison the boy. However, the speaker may have had one very obvious reason for not going into this. If he admits that he ordered the boy to drink something, he would be indirectly responsible for the boy's death, a "planning" of unintentional death that C. well shows (254-70) was equally subject to punishment. C. himself quotes the defendant (275: ss. 30-32), "When a litigant builds his case on mere argument, providing no witnesses to the events, one would say 'his arguments fail for lack of evidence'; and should he provide witnesses but present no circumstantial indications (tekmeria) consistent with their testimony, one could make a similar objection. Now I have presented you with reasonable arguments, witnesses to corroborate those arguments, an account of the events consistent with their testimony ... and finally, the two strongest indications, my accusers themselves are proved false both by me and at their own hands, while I stand acquitted both on my own reckoning and by theirs." That may fairly well sum up the speech as the speaker intended it. The speaker attacks his opponents at length and summons witnesses; but, as he says, arguments and events, the facts of what happened, are also important.
Lysias 1 was delivered in a case of justifiable killing before the Delphinion court. In C.'s analysis this speech focuses on the texts of laws which are cited like witnesses (283, 289), to demonstrate the righteousness of the killing. The speech is "structured around the word of witnesses under oath and the wording of the laws" (287). "There is no delving into the defendant's psyche to show that he was deprived of his wits..." (307).
In many ways Lysias 1 appears to be inconsistent with C.'s thesis on the nature of speeches in early dikai phonou. There is no getting around Euphiletos's concern to present the facts of the case (an issue C. does not expressly address), and his use of conjectural arguments from probability (see C. 286). David Cohen and others have shown that in Athenian lawcourt speeches generally, the citation of laws functions largely as rhetoric rather than for reasons of jurisprudence. In Athenian texts many people praise the law, not just in homicide speeches. The servant girl does not testify and is not tortured, despite what C. regards as the traditional role of witnesses and torture in homicide cases. Euphiletos appeals to the good of the city (ss. 47-50), which elsewhere C. thinks is not characteristic of dikai phonou. Euphiletos would certainly not delve into his own psyche, when his defense was obedience to the laws. Finally, laws are surely not the equivalent of witnesses. If there are conventions in the speeeches in dikai phonou of the type that C. describes, this speech does not follow them. This is not fatal for C.'s thesis but at a minimum must modify it. A discussion of formalistic means was perhaps more common in homicide speeches than in others, but the disparity between types of speeches is not so great as C. supposes.
In his penultimate chapter, C. argues that two speeches not delivered in dikai phonou show important differences from standard homicide speeches. In his opinion, these demonstrate that speeches in dikai phonou retained a conservative character inherited from the time of Drakon and before, but speeches in other areas continued to develop. Antiphon 5 is the Mytilenean Euxitheos's defense against the charge of murdering the Athenian Herodes at sea. While admitting that this speech also relies on slave testimony by torture (e.g., ss. 30 ff., where the speaker attempts to discredit this testimony), a letter (s. 53 ff.), an appeal to the laws (5.14, repeated in 6.2, in a dike phonou), and witnesses (e.g., ss. 20-24), C. argues (316) that this material is used not to demonstrate the litigant's convictions and the credibility of an oath, but rather "as circumstantial evidence on the question of probable cause, whether the defendant was apprehended in immediately incriminating circumstances" (316). The speaker is much concerned with proper procedures, of trial or the torture of slaves. In addition, the speech shows a much greater interest in probabilities, ta eikota, than do the speeches for phonos. All this is persuasively done. However, it may also be pointed out that at least some of this may be conditioned by the nature of the process (endeixis and apagoge) and of the specific crime, rather than some intellectual breakthrough denied to litigants in dikai phonou. As Euxitheos reminds the dikasts (s. 11), the prosecutors proceeded by endeixis, and therefore there were no oaths. Accordingly, of course, Euxitheos could not appeal to oaths, or attempt to impune what his opponents had sworn. There was no body, and no witnesses to the murder. Therefore, Euxitheos was compelled to fall back on probabilities, ta eikota, and to talk about motives and means. Although C. repeats (318) that in dikai phonou "the objective question of what happened is not directly at issue," in fact we have seen that it sometimes is; and so it is again in Antiphon 5. The differences between Antiphon 5 and extant speeches in dikai phonou may be explained not so much by intellectual conservatism against the new rationalism (though I am not prepared to deny some element of this), but by differences in procedure and the facts of specific cases. Just so, as C. says, in Lys. 13, also an apagoge for homicide, no witnesses could testify regarding the killing at issue, and "the plaintiffs are therefore driven back upon circumstantial reasoning ... by way of conjecture from probability" (357).
Regarding C.'s thesis as a whole, an important question concerns mechanisms and motivations. On C.'s reconstruction, how, and why, was a conservative approach to homicide adjudication preserved through the later fifth century when in other cases the very same speechwriters felt liberated to address issues of contemporary concern such as probabilities and human experience? It remains unclear to me why litigants would refrain, e.g., from using arguments of probability in homicide cases, if they were already thinking along these lines in other contexts. Two alternatives to C.'s hypothesis of archaic survivals are based on the specificities of Athenian homicide adjudication and the specificities of particular cases. As I have said, because litigants took oaths (sometimes of the most serious kind) in homicide prosecutions but did not in other kinds of prosecutions, oaths were a ready point to discuss in homicide cases, but could not be elsewhere. Antiphon himself (5.11, 6.6) stresses that the oaths and other procedures in homicide cases differed from those in other types of case. The nature of the procedure perhaps also made it traditional to speak of some issues in homicide cases that were absent elsewhere. It is a fascinating observation that Antiphon 5 speaks of probabilities whereas extant speeches in dikai phonou do not. However, as I have noted, these may derive from various uncertainties in the particular case in question, and not from a modern mindset which the same writer had to unplug in homicide cases brought in another court.
Although its general thesis must be modified, C. has demonstrated that speeches in dikai phonou were sometimes more concerned with formal mechanisms than were speeches in other contexts, and that this changed over time. In smaller ways also, there is much to like in this study. Smoothly, sometimes eloquently written in a professional academic style, the book is refreshingly non-polemical, and C. has done his homework. Good progress is made on a number of specific issues, for example the extent to which the homicide laws in Dem. 23 are authentically Drakonian (e.g., 94-96 make a reasonable case regarding one of these provisions). I am intrigued by the suggestion (111) that even if the Areopagos had been the site of some sort of council before Solon, the sources may claim him as the founder of the Areopagos Council because he assigned it new powers and obligations. Pp. 35-41 and 223-225 demonstrate that pronoia involves prior design, not simply intention. Pp. 254-70 skilfully elucidate how one might "plan" an unintentional homicide. Pp. 119-25 and 282 stress that justifiable killing (even in athletic contests) is retributive killing, justified not by some moral excuse on the part of the killer but by the fault of the victim. C. includes two long and valuable discussions of the amnesty of 403 (125-32, 367-72). The antiquity of the procedure of arresting suspected homicides is well defended (334-37). C. consistently, and persuasively, argues to preserve texts rather than to emend them (see, e.g., 239 and 256). Briefly on the debit side, it seems not especially helpful to translate certain technical terms, e.g. ephetai as "justices," or kakourgos as "felon," because these terms are not simple equivalents. In particular, the word "ephetes" may have had some meaning which "justice" certainly does not have. As seems fitting for a book that deals in part with early sophistic texts, C. often argues from nature. For example it is "more natural" (9) that the Areopagos and the ephetai should be two different bodies (but, e.g., the ephetai could be a committee of Areopagites: their name could in fact mean this).
C.'s long, painstaking book is for scholars of ancient Greek law and rhetoric. Legal historians will find much to argue with and much to admire, especially in the wealth of smaller points that C. so carefully discusses. For students of rhetoric, C.'s masterly general treatments of the early speeches will be indispensable.
1. G. Thür, "Zum δικάζειν bei Homer," ZSS 87 (1970) 426-44.
2. R. Westbrook, "The trial scene in the Iliad," HSCP 94 (1992) 52-76.For further examples where laws served to limit retribution, see Dem. 23.28 that murderers cannot be maltreated or held to ransom, the law of Drakon limiting compensation in murder cases to twenty head of cattle (Poll.9.61), Drakon's provision that if a man seizing another is killed, there shall be no penalty for his death (Dem. 23.60 = IG 13 37-38), and apparently Solon's restriction of the period of exile for unintentional homicide to 5 years and his regulation of the blood price (see C. 111 and n. 48).
3. M. Gagarin, Drakon and Early Athenian Homicide Law (New Haven 1981) 46-48.
4. L. Rubinstein, "Synegoroi and their place in our reconstruction of the Athenian legal process," forthcoming in Symposion 1999, edd. G. Thuerand F. Nieto.